The Reason For Attorney-Client Privilege
One of the main foundations of the legal profession in general is the necessity and ability for clients to speak to their attorneys about anything without the fear of their attorney being able to share that information. If you really think about it this concept is the backbone of what allows many areas of law to function. After all, how can a person who is confiding in an attorney feel confident that they are not risking having their most sensitive information fall into the wrong hands?
Defining Attorney-Client Privilege
A simple definition of this term is:
An American legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential.
It is one of the oldest recognized privileges for confidential communications. In fact, it can be traced back to the Roman Republic. Its use was first firmly rooted in English law, or what we call “common law.” This is significant because a majority of our legal system in the United States is derived from English common law. But enough with the history lesson.
It Is Law
It is important to realize that it is much more than just a concept. IT IS A LAW. In Washington State it is codified in RCW 5.60.060 (2)(a), where it states: An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.
What Does It Mean?
It means that as an attorney if I disclose something that my client shares with me that they don’t want me to, whether they committed a crime, have been lying, etc. (which come up all the time in my practice of criminal law) then I am violating the law by doing so. Not only the laws of Washington State, but also my oath as an attorney. Which in turn means that I could lose my license to practice law by doing so. In other words it is a big “no no”.
While this privilege is quite encompassing, it is not absolute. Yes, there are certain communications between client and attorney that it does not cover. These are meant to serve the purpose of aiding public policy. The most common exception (again, which comes up in my practice of criminal law) is the Crime or Fraud Exception. Here is how it works:
If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud (meaning the crime has not yet been completed and they want help in doing so) then the communication is not privileged. If, however, the client has completed the crime or fraud (again, this is usually the case in my practice) then anything the attorney and client discuss about the crime is privileged information. Unless, the client wants help covering up the crime, which would be committing a further crime.
There you go. I hope you have enjoyed or at least found interesting this simplified explanation of one of the most important concepts in the practice of law.
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Stryder J. Wegener is the author of this article, the co-founder of Emerald City Law Group, and a damn good criminal defense attorney.